Filed 9/16/19 Gonzalez v. Union Pacific Railroad CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SANDRA GONZALEZ,

Plaintiff and Appellant,

v.

UNION PACIFIC RAILROAD,

Defendant and Respondent.

F075701

(Fresno Super. Ct. No. 14CECG00134)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge.

Nicco Capozzi for Plaintiff and Appellant.

Miller Law Group, Joseph P. Mascovich; Flesher Schaff & Schroeder, Jacob D. Flesher and Jeremy J. Schroeder, for Defendant and Respondent.

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This wrongful death action arose out of a collision between a train and an automobile in which appellant’s decedent was a passenger. At trial, appellant contended the railroad failed to give adequate warning of the presence of the railroad tracks, which led to confusion on the part of the automobile driver, who braked, but failed to stop the car before it crossed the tracks in the path of an approaching train. The jury found in favor of the railroad. Appellant appeals, asserting the trial court should have granted her request for a jury view of the scene of the collision and should have granted a new trial because the verdict was against the weight of the evidence. She also contends attorney misconduct during closing argument deprived her of a fair trial. We conclude there was no abuse of discretion in the denial of a jury view and no prejudicial attorney misconduct; further, appellant failed to establish any error in the denial of her motion for a new trial. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of August 19, 2013, five young people in a car driven by Michaela Smith left a business meeting held at a private residence. They drove along Jefferson Avenue, an unpaved, private road, which crossed railroad tracks before intersecting with Golden State Boulevard. There was a stop sign and a private railroad crossing sign before the crossing. As the Smith car approached the tracks, it braked, then continued across the tracks, where it was struck by a train. Four of the occupants of the car, including appellant’s decedent, Reuben Fernandez, were killed. The surviving occupant had no recollection of the accident.

Fernandez’s mother, plaintiff Sandra Gonzalez, and plaintiff Sarah Vega, the mother of decedent, Angelina Velasquez, sued Union Pacific Railroad Company (Union Pacific) and others for the wrongful death of their children. Smith’s parents also sued, and their action was consolidated with the Gonzalez action. At trial, plaintiffs contended the railroad crossing was not reasonably safe, because the only warning of the presence of the tracks was a stop sign and a private railroad crossing sign; the crossing did not have gates, flashing lights, or the standard crossbuck that is used at railroad crossings on public streets. Plaintiffs also asserted that, as the Smith vehicle was traveling west on Jefferson Avenue, the railroad tracks were only approximately 62 to 67 feet before Golden State Boulevard. They argued that, because there was no stop sign at the intersection of Jefferson Avenue and Golden State Boulevard, and no limit line at the stop sign by the railroad tracks, a driver approaching the railroad crossing at night might become confused, believe the stop sign was for Golden State Boulevard, and not know where to stop. Union Pacific presented evidence the signage complied with the legal requirements for private railroad crossings and argued the sole cause of the collision was Smith’s failure to stop at the stop sign.

The jury returned a verdict finding Union Pacific was not negligent. Judgment was entered in favor of Union Pacific. Gonzalez’s motion for a new trial was denied. Gonzalez appeals from the judgment in favor of Union Pacific.

DISCUSSION

I. Jury View of Scene of Incident

Gonzalez contends the trial court abused its discretion by denying her request for a jury view of the scene of the incident. Prior to trial, Gonzalez joined in the Smith plaintiffs’ motion for a nighttime jury view of the railroad crossing where the collision occurred. The trial court denied the motion.

“On its own motion or on the motion of a party, where the court finds that such a view would be proper and would aid the trier of fact in its determination of the case, the court may order a view of any of the following: [¶] (1) The property which is the subject of litigation. [¶] (2) The place where any relevant event occurred. [¶] (3) Any object, demonstration, or experiment, a view of which is relevant and admissible in evidence in the case and which cannot with reasonable convenience be viewed in the courtroom.” (Code Civ. Proc., § 651, subd. (a).) If a view is ordered, “the entire court, including the judge, jury, if any, court reporter, if any, and any necessary officers” must attend. (Code Civ. Proc., § 651, subd. (b).) In determining whether to grant a jury view, “the court should weigh the need for the view against such considerations as whether the view would necessitate undue consumption of time or create a danger of misleading the trier of fact because of changed conditions.” (Legis. Com. com., Deering’s Ann. Code Civ. Proc., § 651.)

“[W]hether the jury should be allowed to view the premises where an accident occurred … is committed to the sound discretion of the trial judge. An appellate court will not reverse a judgment because of a ruling in that regard unless the record clearly shows an abuse of that discretion. [Citations.]” (Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 501–502.) Denial of a jury view of the scene of an accident is not an abuse of discretion when photographs and diagrams introduced in evidence adequately depicted the scene. (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 201; Crawford v. Senegram (1935) 7 Cal.App.2d 449, 450.)

The trial court’s ruling on the motion for a view is not included in the record on appeal. In denying Gonzalez’s motion for a new trial, which was based in part on the trial court’s refusal to conduct a jury view of the incident site, the trial court stated:

“In this case, for the jury view to have any meaning at all it would have had to have occurred at nighttime, after normal court hours, raising issues related to the safety and security of the jurors and court personnel. More importantly, given the volume of photographs and videos of the area and, indeed, of the incident itself, there simply was no need for a jury view. Counsel had virtually unfettered ability to visually present the characteristics of the crossing from multiple angles and vantage points.”

The evidence introduced at trial included a video of the accident itself, recorded by a camera mounted on the train; a daytime video taken by the California Highway Patrol the day after the accident, depicting the route of travel of the Smith car; and a nighttime video taken by one of plaintiffs’ experts, depicting the path of the Smith vehicle at two speeds. The evidence also included diagrams of the accident scene and numerous photographs, including aerial photographs of the area around the railroad crossing, photographs of the scene taken by law enforcement officers on the night of the accident and the following day, and photographs taken by experts in preparation for trial.

In the motion for a jury view, plaintiffs argued that, because the collision occurred at night, “whether or not the railroad’s posted signs provide reasonable warning of the presence of its tracks must be evaluated at night.” They added: “Although the viewing would not be an attempt to recreate the exact conditions of the collision, there is an uncertainty about the crossing that plaintiff contends can best be appreciated by visiting the scene at night.”

In opposition, Union Pacific pointed out that plaintiffs were “requesting that at least fifteen jurors, the judge, a court clerk, a court reporter, a bailiff, the parties, and the parties’ attorneys all be transported to the accident site in the middle of the night in January to walk around an active railroad crossing,” when the temperature might be near freezing. Union Pacific also noted there were ample photographs and videos of the railroad crossing and argued the view would mislead the jury because the jury would not see the scene from a vehicle, as Smith did, or with a locomotive on the tracks, with its headlights, ditch lights, and train whistle operating, as occurred on the night of the collision.

We find no abuse of discretion in the trial court’s denial of a jury view of the scene of the collision. All parties had ample opportunity to present photographs and videos of the scene to demonstrate the conditions that prevailed at the time of the collision and that may have contributed to it. Photographs and videos of the scene were presented; experts explained and analyzed them. The proposed view admittedly would not have recreated conditions as they existed at the time of the collision; it would have omitted the warnings given by the train itself – lights and horn – that the train was approaching. Thus, the view proposed by plaintiffs might mislead the jury, by not accurately presenting the conditions as they existed at the time of the collision. The trial court also properly considered safety concerns.

Gonzalez also seems to contend the trial court should have granted her motion for a new trial based on its abuse of discretion in denying her motion for a jury view of the railroad crossing. A new trial may be granted when an irregularity in the proceedings, an order of the trial court, or an abuse of the trial court’s discretion prevented a party from having a fair trial. (Code Civ. Proc., § 651, subd. (1).) Although Gonzalez makes no separate, specific argument that the trial court erred in denying her motion for a new trial, she seems to assume that, if the trial court abused its discretion by denying her motion for a jury view, then it necessarily also abused its discretion by denying the motion for a new trial, to the extent the new trial motion was based on the allegedly erroneous denial of the motion for a jury view.

“[D]enial of a new trial is a matter which rests largely in the discretion of the trial court and will not be disturbed except on a manifest and unmistakable abuse of that discretion. [Citation.]” (Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12 Cal.App.3d 143, 151.) “It is well established that ‘the trial judge is familiar with the evidence, witnesses and proceedings, and is in the best position to determine whether, in view of all the circumstances, justice demands a retrial.’ The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question. Review is limited to the inquiry whether there is any support for the ruling, and the order will be reversed only where there is a strong showing of abuse of discretion. [Citation.]” (Brandwein v. Rodriguez (1955) 133 Cal.App.2d 433, 437.) Because the trial court did not abuse its discretion in denying Gonzalez’s motion for a jury view of the accident site, we cannot conclude it was an abuse of discretion to deny the motion for a new trial, to the extent that motion was based on a claim that the trial court improperly denied the jury view. The burden is on Gonzalez to affirmatively show a manifest and unmistakable abuse of discretion in the denial of her motion for new trial. (Yarrow v. State of California (1960) 53 Cal.2d 427, 434.) Gonzalez has not sustained that burden.

Gonzalez has also failed to demonstrate the alleged error was prejudicial. “An appellant bears the burden to show not only that the trial court erred, but also that the error was prejudicial in that it resulted in a miscarriage of justice. [Citations.]” (Jones v. Farmers Ins, Exchange (2013) 221 Cal.App.4th 986, 999.) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Gonzalez has not demonstrated that the videos, photographs, witness descriptions, and other evidence concerning the appearance of the crossing, the signage, and the train’s warning devices, presented such an inadequate or misleading picture of the accident scene that it was reasonably probable the jury would have reached a result more favorable to Gonzalez if the jury had viewed the scene of the accident themselves. Gonzalez has failed to demonstrate the failure to grant a jury view of the site constituted prejudicial error.

II. Misconduct of Counsel

Gonzalez contends Union Pacific’s counsel made two comments during closing argument that amounted to misconduct and justify reversal and a new trial.

“The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury. [Citation.] In more concrete terms, attorneys cannot make appeals based on irrelevant financial aspects of the case such as the hardship that would be visited on a defendant from a plaintiff’s verdict [citation] or the hardship that would be visited on a plaintiff from a defense verdict [citation].” (Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 566 (Martinez).) Further, “[p]ersonal attacks on opposing parties and their attorneys, whether outright or by insinuation, constitute misconduct. [Citation.] Such behavior only serves to inflame the passion and prejudice of the jury, distracting them from fulfilling their solemn oath to render a verdict based solely on the evidence admitted at trial. [Citationl.]” (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1246.)

In determining whether attorney misconduct is prejudicial, the reviewing court should consider a number of factors, including: “(1) the nature and seriousness of the misconduct; (2) the general atmosphere, including the judge’s control of the trial; (3) the likelihood of actual prejudice on the jury; and (4) the efficacy of objections or admonitions under all the circumstances. In ascertaining prejudice, the reviewing court makes an independent determination [citation] in light of the overall record [citation].” (Martinez, supra, 238 Cal.App.4th at p. 568.)

Gonzalez contends the following passage from Union Pacific’s counsel’s closing argument constituted misconduct:

“Now, I’ll submit to you, so that it’s clear, Mr. Paboojian [Gonzalez’s counsel] represents the – represents the passengers, and Ms. Sample represents Ms. Smith, the driver’s family. And I understand why Ms. Sample would be passionate about it. I didn’t realize until her opening statement that this was her assistant’s daughter. And I understand why she would justify or try to justify or try to make sense out of what happened that night. But I submit to you that Mr. Paboojian, if Ms. Smith were driving the Union Pacific truck that night, and she was an employee of Union Pacific, and she ran that stop sign, I’ll guarantee you that he would be standing up here telling you Union Pacific is liable because the driver of the car, that employee, ran the stop sign. [¶] There’s about 20 million reasons why he’s not making that argument here.”

A. Comment Regarding Attorney Sample, the Smiths’ Counsel

Gonzalez argues the comments regarding attorney Sample being “passionate” about the case, and Smith being Sample’s assistant’s daughter, implied Sample was biased and had a personal stake in the outcome of the case. Gonzalez asserts the argument was not supported by the evidence, was intended to bias the jury against plaintiffs, and argued against Sample as a person.

“ ‘Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.’ [Citation.] ‘ “As the effect of misconduct can ordinarily be removed by an instruction to the jury to disregard it, it is generally essential, in order that such act be reviewed on appeal, that it shall first be called to the attention of the trial court at the time, to give the court an opportunity to so act in the premises, if possible, as to correct the error and avoid a mistrial.” ’ ” (Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311, 318.)

First, in the trial court, Gonzalez did not object to the statements about Sample, on any of the grounds asserted here, or at all. Because the trial court was deprived of the opportunity to consider whether the comments were objectionable and admonish the jury appropriately if it found them to be, any objection to the comments was forfeited and will not be reviewed on appeal.

Second, counsel for Union Pacific merely suggested Sample was passionate about the case and wanted to “try to make sense out of what happened that night” because she knew her clients, the Smiths, personally. This does not imply any greater bias in favor of her clients than any attorney normally feels toward his or her clients. It also does not imply Sample had any stake in the outcome, other than her desire to see her clients prevail.

Third, the comments related to the Smiths’ attorney, not to Gonzalez or her attorney. Gonzalez has not suggested how the comments prejudiced her case against Union Pacific.

Gonzalez has not demonstrated the Union Pacific’s counsel’s comments about Sample constituted prejudicial attorney misconduct.

B. Twenty Million Reasons

Gonzalez also cites as attorney misconduct the comment by Union Pacific’s counsel that “[t]here’s about 20 million reasons why” Gonzalez’s attorney was not arguing Smith was responsible for the collision. Gonzalez asserts the comment “attempted to belittle Plaintiffs’ counsel as simply out to get money, that he was only after the deep pockets”; it “expressly stated” the position of Gonzalez’s counsel was based on who could pay, not on the facts, and invited the jury to disregard plaintiffs’ case as merely about money. This, Gonzalez asserts, prejudiced her case.

Gonzalez’s counsel objected to the “20 million reasons” remark only on the ground there was “no evidence of that.” The trial court overruled the objection, concluding “[i]t’s argument.” The argument of Union Pacific appeared to be a direct response to the closing argument of Gonzalez’s attorney: that the jury should award Gonzalez $10 million for past and future damages for the loss of her son, and that it should award the attorney’s other client, Vega, the same amount for the loss of her daughter. Because Gonzalez did not object on the ground now asserted – that the argument improperly suggested her attorney was out to get money from a deep pocket, regardless of the facts – the trial court was not given the opportunity to consider that objection and, if appropriate, sustain it and admonish the jury. The objection was forfeited.

Further, the comment did not amount to attorney misconduct. Gonzalez and Vega sued Union Pacific; they did not sue Smith. Under the circumstances, Union Pacific’s argument was that Gonzalez and Vega were asking for $20 million from Union Pacific, but Union Pacific was not responsible for Smith’s actions, because Smith was not its employee. If the jury found Smith entirely or partially responsible for the collision, Gonzalez and Vega would not be able to recover that amount from Union Pacific. The argument of Union Pacific’s counsel suggested that was why Gonzalez and Vega were not attributing any fault to Smith. Under the circumstances of this case, the argument was not improper.

III. Verdict Against the Weight of the Evidence

Gonzalez contends her motion for new trial should have been granted on the ground the verdict was against the weight of the evidence. (Code Civ. Proc., § 657, subd. (6); Hutchison v. Elliott (1960) 183 Cal.App.2d 263, 265–266.) However, she has not identified any error by the trial court, or presented any reasoned argument or supporting legal authority, to establish any error in that ruling. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate … that the trial court committed an error that justifies reversal of the judgment. [Citations.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) “An appellant must provide an argument and legal authority to support his contentions.… It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. omitted.)

Gonzalez’s opening brief states: “Counsel resubmits counsel’s argument on this issue in its entirety as expressed in trial counsel’s motion for new trial and reply motion.” A party, however, “may not simply ‘ “incorporate by reference arguments made in papers filed in the trial court, rather than briefing them on appeal.” ’ [Citations.]” (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 390, fn. 12.) “It is inappropriate for an appellate brief to incorporate by reference arguments contained in a document filed in the trial court. [Citation.] Such practice does not comply with the requirement that an appellate brief ‘support each point by argument and, if possible, by citation of authority.’ [Citation.] ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854.) “A Court of Appeal may refuse to consider arguments incorporated by reference. [Citation.]” (McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 987.)

Additionally, arguments made in the trial court do not address the standard of review on appeal. In the trial court, “[t]he powers of a trial court in ruling on a motion for new trial are plenary.… [It] has the power ‘to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact’ [citation] ….” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) “The trial judge has ‘to be satisfied that the evidence, as a whole, was sufficient to sustain the verdict; if he was not, it was not only the proper exercise of a legal discretion, but his duty, to grant a new trial.’ [Citation.]” (Ibid.)

On appeal, we apply an abuse of discretion standard: the denial of a motion for new trial predicated on insufficiency of the evidence will not be reversed unless it is affirmatively shown that the trial court abused its discretion. (David v. Hernandez (2014) 226 Cal.App.4th 578, 588–589.) “In reviewing the trial court’s exercise of its discretion, this court, unlike the trial court, does not weigh the evidence; our power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the jury’s verdict. [Citation.]” (Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463.)

To the extent Gonzalez contends the trial court erred in finding there was sufficient evidence to support the jury’s verdict, our review of the entire record reveals there was ample evidence supporting it. Accordingly, we find no abuse of discretion in the trial court’s denial of Gonzalez’s motion for a new trial.

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

POOCHIGIAN, J.

WE CONCUR:

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LEVY, Acting P.J.

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MEEHAN, J.